Updated: July 2017
TouchBistro Inc. (“TouchBistro”, “we”, “us” and terms of similar meaning) provides the TouchBistro Application, its web site www.touchbistro.com (the “Site”), and all associated services and add-ons including third party services (collectively the “TouchBistro Services”) to you subject to the Terms and conditions of use (the “Terms”). These Terms apply to: (i) your use of the TouchBistro Services; (ii) the use of TouchBistro Services by third parties authorized through your TouchBistro account to use the TouchBistro Services and your User Content (as defined below) through the TouchBistro Services; and (iii) the use by such authorized users of any additional software, hardware or other services provided, referred, or recommended by us or third parties as part of or for use with the TouchBistro Services.
Please read the Terms carefully before using TouchBistro Services. By accessing, using or continuing to use TouchBistro Services you agree to be legally bound by the Terms and all terms, policies and guidelines incorporated by reference into the Terms. If you do not agree with the Terms in their entirety, you may not use TouchBistro Services.
In the Terms, our customers and their staff members to whom they give access to their TouchBistro account are called “Subscribers”, and our customers’ customers who use TouchBistro Services (for example, to view or use TouchBistro Services designed for use by those parties) are called “Customers”. Users of TouchBistro Services, whether they are Subscribers or Customers, are called “Users”.
You should from time to time review the Terms and any policies and documents incorporated in them to understand the terms and conditions that apply to your use of TouchBistro Services. The Terms will always show the ‘last updated’ date at the top. If you do not agree to any amended Terms, you must stop using TouchBistro Services. If you have any questions about the Terms, please email us at support@TouchBistro.com.
TouchBistro Services are for your own use only. You may not resell, host, publish, lease or provide them in any other way to anyone else, except as expressly permitted by TouchBistro or under this Agreement.
2. Registration Data; Account Security
If you register for an account on TouchBistro Services, you agree to (a) provide and maintain accurate, current and complete information as may be prompted by any registration forms on TouchBistro Services (“Registration Data”); (b) maintain the security of your password/s; (c) maintain and promptly update the Registration Data, and any other information you provide to TouchBistro, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information or data you provide to TouchBistro or through the TouchBistro Services. You are responsible for all activity on your TouchBistro account, and for charges incurred by your TouchBistro account.
3. Fees; Charges; Taxes
Fees and any other charges for the use of TouchBistro Services are described on the Site. They may change from time to time. If they do change, your continued use of TouchBistro Services after the change indicates your agreement with the new fees and charges after the effective date of the change. Any change to fees and other charges will not be applicable to the billing period in which the change occurs but shall apply to any subsequent renewal.
You are responsible for all taxes applicable to the fees and charges in any applicable jurisdiction.
All pre-paid license, subscription, or other fees (including professional services such as installation and training) are non-refundable and subject to any additional payment or other terms or conditions provided for in the applicable Quotation or order documentation.
Professional services must be booked 15 days in advance. Payment is required prior to booking professional services. Cancellation or rebooking must be made more than 3 days before professional services commence or will be subject to $100 change fee. If you cancel or change dates you will be given a credit (less change fee) for such services which must be used by the latest of 60 days from the License Start Date and the signed Quotation, after which the credit expires and constitutes non-refundable payment to TouchBistro.
4. Ownership, Copyright and Trademarks
In the Terms the content available through TouchBistro Services, including all information, content, data, logos, marks, interfaces, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is called “TouchBistro Content”. Content provided by Users, whether they are Subscribers, Customers or other Users, is called “User Content”. For example, data about its Customers and that a Subscriber provides to TouchBistro is User Content of that Subscriber, data about its payments, menu, or operations that a Customer provides to TouchBistro is User Content of that Customer, and Content that a User enters into any TouchBistro database is User Content of the User.
User Content is that User’s property. TouchBistro’s only right to that User Content is the limited licenses to it granted in the Terms and as necessary to provide support to end users or to ensure the security of TouchBistro Services and technology.
Other than the User Content, all Content and all software available on TouchBistro Services or used to create and operate TouchBistro Services is the property of TouchBistro or its licensors, and is protected by Canadian and international patent, trademark, and copyright laws, and all rights to TouchBistro Services, such Content and such software are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in TouchBistro Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation of them by TouchBistro.
TouchBistro may use and shall be the exclusive owner of any feedback, suggestions, improvements or ideas (“Feedback”) you provide or have provided to TouchBistro regarding the TouchBistro Services. This applies to Feedback provided to TouchBistro at any time in any format. You assign all intellectual property rights in Feedback to TouchBistro immediately upon communication of such Feedback to TouchBistro or its representatives. TouchBistro may use Feedback for any purpose without compensation or attribution to you and you forever waive and surrender any and all rights in Feedback.
If you authorize third parties to access your User Content through TouchBistro Services, you agree that we are permitted to provide to them the User Content, and also agree that we have no responsibility or liability for their use of such User Content. Any such access shall be governed by any applicable end user or API agreements or terms applicable to such third party and may be subject to fees charged by such third party.
Without limiting the generality of the foregoing, you are responsible for all business continuity, data loss, business interruption, or other risks that may arise out of your use of TouchBistro Services. TouchBistro denies, disclaims, and waives any liability for any loss that may occur arising through use of TouchBistro Services, including, but not limited to, loss of data, business interruption, incorrect calculation of any amount, including taxes or amounts due from your customers, or loss of customer goodwill.
TouchBistro Services are provided on an “as is” basis. You acknowledge and accept all risks associated with using TouchBistro Services and release TouchBistro from any claim or liability in relation thereto.
Your data and User Content is your responsibility. We have no responsibility or liability for it, or for any loss or damage your User Content may cause to you or other people.
5. Your Limited License of Your User Content to TouchBistro
We do not claim any ownership interest or rights in your User Content except as provided for under the Terms, but we do need the right to use your User Content to the extent necessary to provide TouchBistro Services, now and in the future.
Therefore, by posting or distributing User Content to or through TouchBistro Services, you (a) grant TouchBistro and its affiliates and subsidiaries a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content, in the manner in and for the purposes for which TouchBistro Services from time to time use such User Content; (b) represent and warrant that (i) you own and control all of the rights to the User Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that User Content, to or through TouchBistro Services; and (ii) the use and posting or other transmission of such User Content does not violate the Terms and will not violate any rights of or cause injury to any person or entity.
If your User Content is intended for the use of other Users you also grant us and our affiliates and subsidiaries and partners a non-exclusive, royalty-free, transferable right to sublicense such User Content to such Users for their use in connection with their use of TouchBistro Services in accordance with all applicable privacy laws and regulations.
These licenses from you are non-exclusive because you have the right to use your User Content elsewhere. They are royalty-free because we are not required to pay you for the use of your User Content on TouchBistro Services. They are transferable because we need the right to transfer these licenses to any successor operator of TouchBistro Services. Our rights to “modify, adapt, translate, and create derivative works from” are necessary because the normal operation of TouchBistro Services does this to your User Content when it processes it for use in TouchBistro Services.
6. Our Limited License of Content to You
TouchBistro grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access TouchBistro Services and to view, copy and print the portions of the Content available to you through TouchBistro Services for the limited purpose of using TouchBistro Services as contemplated by this agreement. Such license is subject to the Terms, and specifically conditional upon the following: (i) you may only view, copy and print such portions of the Content for your own use as contemplated by TouchBistro Services; (ii) you may not modify or otherwise make derivative works of the Content, or reproduce, distribute or display the Content except as expressly permitted in the Terms; (iii) you may not remove or modify any copyright, trademark, or other proprietary notices that have been placed in the Content; (iv) you may not use any data mining, robots or similar data gathering or extraction methods; and (v) you may not use TouchBistro Services or the Content other than for their intended purpose. You may not assist any third party in carrying out these prohibited activities. When you use TouchBistro services to publish any menu, online ordering or similar functionality, a TouchBistro logo or similar attribution with link to touchbistro.com will be installed.
Except as expressly permitted above, any use of any portion of the Content without the prior written permission of its owner is strictly prohibited and may result in the termination of the license granted in this Section without notice, and immediate termination of this Agreement and your account with us. Any such unauthorized use may also violate applicable laws, including without limitation patent, copyright and trademark laws. Unless explicitly stated herein, nothing in the Terms may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license in this Section is revocable by TouchBistro at any time without notice or warning.
You represent and warrant that your use of TouchBistro Services and the Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law or regulation.
To request permission for uses of Content not included in this license, you may contact TouchBistro at the address set out at the bottom of the Terms.
7. Using the TouchBistro Services and Marketing Services
TouchBistro Services may include services whereby you or developers or third-parties hired by you use the TouchBistro Services to market your products and services. This Section contains terms and conditions applicable to your use of the TouchBistro Services for that purpose, whether you are a Subscriber or other User, including a developer or operator of a website or application (a “TouchBistro Marketing Initiative”) who wishes to use the TouchBistro Services for the purpose of including Content in your TouchBistro Marketing Initiative.
If you are a Subscriber and you procure a third-party to develop a TouchBistro Marketing Initiative for you, this Section applies to your and their use of the TouchBistro Services, and you are responsible for their compliance with this Section to the same extent as though you were developing the TouchBistro Marketing Initiative yourself.
If you are a Services Developer and not otherwise a User, your use of the TouchBistro Services constitutes your agreement to the Terms. We may change the Terms without notice to you by posting new Terms on the Site. It is your responsibility to review the Site for changes to the Terms. If you use TouchBistro Services after new Terms are posted, your use of TouchBistro Services constitutes your agreement to the new Terms. If you do not wish to be bound by the new Terms, cease your use of TouchBistro Services.
If you are a services developer supporting a TouchBistro Marketing Initiative and not otherwise a Subscriber or other User of TouchBistro Services, the license set forth in this Section applies to your use of the TouchBistro Services, and the license set forth in Section 6 does not apply to your use of the TouchBistro Services. If you are also a Subscriber or other User, the license set forth in Section 6 applies to your use of Content other than the TouchBistro Services, and this Section applies to your use of the TouchBistro Services.
TouchBistro Services are intended to operate together with dedicated hardware. To minimize the risk of security breaches and technology malfunctions, you agree to use dedicated hardware for TouchBistro Services. For example, you will ensure that your employees do not install apps on the iPads; do not use the iPads to surf the web, and such). If you do not use dedicated hardware, we reserve the right to not support your TouchBistro Services as the other applications may cause conflicts or performance issues with TouchBistro Services.
8. Other Restrictions on Use of TouchBistro Services
Any party’s use of the TouchBistro Services is also subject to the following restrictions. You (alone or by assisting or enabling any other party) may not:
- Interfere or attempt to interfere in any manner with the proper workings of the TouchBistro Services, or create or distribute any TouchBistro Marketing Initiative that adversely affects the functionality or performance of TouchBistro Services or adversely impacts the behavior of other applications using the TouchBistro Services;
- Misrepresent your identity or intentions when communicating with us in relation to the TouchBistro Services, use the developer credentials licensed to a different individual or entity, allow your credentials to be used by others, or mask your usage of the TouchBistro Services;
- Use the TouchBistro Services in association with, or as a component of, any website that in the sole discretion of TouchBistro is determined to be obscene or otherwise commercially inappropriate;
- Use the TouchBistro Services for any application that constitutes, promotes or is used in connection with spam, spyware, adware, other malicious programs or code;
- Use the TouchBistro Services in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, taxation or governmental reporting obligations or other regulatory obligations;
- Replicate, in whole or in part, the “look and feel” of TouchBistro Services or portion of them;
- Use a combination of visual, design, or functional elements that could reasonably be expected to cause confusion between TouchBistro Services and your TouchBistro Marketing Initiative among users;
- Disparage or otherwise negatively represent TouchBistro Services or do anything that could result in damage or dilution to the goodwill of TouchBistro and its brand;
- Use the TouchBistro Services for any application or service that attempts to replace or replicate the essential user experience or functionality of any or all TouchBistro Services;
- Reverse engineer, decompile or otherwise attempt to extract the source code of TouchBistro Services or any part thereof;
- Circumvent or render ineffective any IP address-based functionality or restriction imposed by TouchBistro Services;
- Circumvent technological measures to prevent direct database access, nor manufacture tools or products to that effect;
- Build conversion functionality that converts Content from the Service to a competing or alternative product or service; or
- At any time you are operating your TouchBistro Marketing Initiative, solicit, interfere with or endeavour to entice away from us any of our Subscribers or other Users.
You agree to carefully monitor your use of the TouchBistro Services and ensure that it remains within reasonable operational limits for both your own server capacity and for ours, when applicable.
TouchBistro has no responsibility to any person for any use or misuse of any Content obtained through the TouchBistro Services. If you are a Subscriber, you should consider carefully whether you wish to give a TouchBistro Marketing Initiative services developer access to your Content through the TouchBistro Services. If you wish to revoke access to your Content through the TouchBistro Services, you should change your TouchBistro Services password or revoke authorization of the TouchBistro Marketing Initiative to your Content. Please contact us at support@TouchBistro.com if you want assistance doing this.
9. Use of Social Media Areas and TouchBistro Services
TouchBistro Services may include discussion forums, location-based services, menu, pricing, and establishment information, bulletin boards, review services or other forums in which you or third parties may post reviews or other content, messages, materials or other items on TouchBistro Services (“Social Media Areas”).
If TouchBistro provides such Social Media Areas, you are solely responsible for your use of such Social Media Areas and use them at your own risk. User Content submitted to any public area of TouchBistro Services will be considered non-confidential. You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through TouchBistro Services any of the following:
- Any message, data, information, text, music, sound, photos, graphics, code or other material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- Unsolicited promotions, political campaigning, advertising or solicitations;
- Private information of any third party, including, without limitation, addresses, phone numbers, email addresses and credit card numbers, unless that third party has expressly consented to such use;
- Viruses, corrupted data or other harmful, disruptive or destructive files;
- Content that is inaccurate, misleading, or unrelated to the topic of the Interactive Area(s) in which such Content is posted; or
- Content that, in the sole judgment of TouchBistro, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or TouchBistro Services, or which may expose TouchBistro or its affiliates or its users to any harm or liability of any type.
TouchBistro has a “zero-tolerance” policy towards unauthorized marketing and spam: you may not use the Social Media Areas or TouchBistro Services generally to send commercial or other messages to any third-party if those messages are not solicited, authorized or welcomed by the third-party, and in your use of TouchBistro Services you must comply with all applicable laws, including laws that apply in any jurisdiction to spam and marketing practices, and with any applicable marketing association guidelines on ethical marketing practices.
Any use of the Social Media Areas or other portions of TouchBistro Services in violation of the foregoing violates the Terms and may result in, among other things, termination or suspension of your rights to use the Social Media Areas and/or TouchBistro Services.
10. Providing a Reliable and Secure Service
We put a great deal of effort into ensuring that TouchBistro Services operate on a reliable basis and where applicable provide a secure environment for your data. We use what we believe to be “best-of-class” infrastructure and hosting services and security technologies and services that we believe provide you with a secure and safe environment.
However, no system is perfectly secure or reliable, the Internet, hardware, power sources, and local servers and associated technology are inherently unreliable at times and can be an insecure medium, and the reliability of hosting services, Internet intermediaries, your Internet service provider, servers, databases, access to or use of financial or business records, and other service providers cannot be assured or assumed.
When you use TouchBistro Services, you acknowledge you understand and accept these risks, and you accept sole responsibility for choosing to use a technology that does not provide perfect security or reliability. In particular, Subscribers who choose to store the credit card information of their Customers accept these risks to the security of that credit card information. TouchBistro recommends that no credit card information is stored within TouchBistro Services. Notwithstanding, when storing credit card information using the TouchBistro Services directly or using third party services, Subscribers acknowledge that they are aware of, and accept as satisfactory, TouchBistro Services’ credit card protection procedures. Ultimately, credit card data is provided by Subscribers and their Customers, and they are responsible for its protection in compliance with all applicable laws and standards.
11. No Responsibility for Third-Party Material
TouchBistro Services may contain links or references to third-party Web sites (“Third-Party Sites”) and third-party content (“Third-Party Content”) as a service to those interested in this information, including third party suppliers, payment processors and other payment intermediaries that you may use in connection with your use of TouchBistro Services. You use links to Third-Party Sites and any Third-Party Content or service provided there, at your own risk.
TouchBistro makes no claim or representation regarding Third-Party Content or Third-Party Sites, and provides them or links to them only as a convenience. Inclusion in TouchBistro Services of a link to a Third-Party Site or Third-Party Content does not imply TouchBistro’ endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. TouchBistro accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content, Third-Party Sites, or Web sites linking to TouchBistro Services. When you leave TouchBistro Services, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
The provider of any third party service is solely responsible for that third party service, the content therein, any warranties to the extent that such warranties have not been disclaimed, any training, support or maintenance for the third party services, and any claims that you or any other party may have relating to that third party services or your use of that third party service. You acknowledge that you are purchasing the license to each third party service from the provider of that third party service; TouchBistro is not acting as agent for the provider in providing each such third party services to you; TouchBistro is not a party to the license between you and the provider with respect to that third party services; and TouchBistro is not responsible for that third party services, the content therein, or any warranties or claims that you or any other party may have relating to that third party services or your use of that third party services.
You acknowledge and agree that TouchBistro and its affiliates are third party beneficiaries of the End User License Agreement for each third party services, and that, upon your acceptance of the terms and conditions of the license to any such third party services, TouchBistro will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof.
12. Advertisements and Promotions
TouchBistro may run advertisements and promotions from third parties on TouchBistro Services. Your business dealings or correspondence with, or participation in promotions of, advertisers other than TouchBistro, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. TouchBistro is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on TouchBistro Services.
13. Warranty Disclaimer
TouchBistro Services and any third party services are provided to you on an “as is” basis without any warranties from TouchBistro of any kind, either express or implied. TouchBistro expressly disclaims all other warranties, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. TouchBistro does not represent or warrant that TouchBistro Services are accurate, complete, reliable, current or error-free. TouchBistro Services and access to data may be interrupted or unavailable at any time and you accept all risk associated with such unavailability or interruption. You should establish other systems to ensure business continuity and to ensure the accuracy or reliability or any business, financial or accounting data generated by the use of TouchBistro Services or otherwise stored or accessed through TouchBistro Services.
While TouchBistro attempts to make your access to and use of TouchBistro Services safe, TouchBistro does not represent or warrant that the Content, the third party services or TouchBistro Services are free of viruses or other harmful components or will be available without interruption or error.
14. Limitation of Liability; Indemnity
You waive and shall not assert any claims or allegations of any nature whatsoever against TouchBistro, its affiliates or subsidiaries, their sponsors, suppliers, contractors, advertisers, vendors or other partners, licensors, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Released Parties”) arising out of or in any way relating to your use of TouchBistro Services or any third party services, including, without limitation, any claims or allegations relating to infringement of proprietary rights, or allegations that any Released Party has or should indemnify, defend or hold harmless you or any third party from any claim or allegation arising from your use or other exploitation of any third party services or TouchBistro Services.
You use TouchBistro Services completely at your own risk. You agree that this is fair and reasonable.
Without limiting the foregoing, neither TouchBistro nor any other Released Party shall be liable for any direct, special, indirect or consequential damages, or any other damages of any kind, including but not limited to loss of use, loss of profits or loss of access to or use of data or loss of goodwill, whether in an action in contract, tort (including but not limited to negligence) or otherwise, arising out of or in any way connected with the use of or inability to use any or all TouchBistro Services or any third party services, including without limitation any damages caused by or resulting from your reliance on TouchBistro Services or any third party services or other information obtained from TouchBistro or any other Released Party or accessible via TouchBistro Services or any third party service, or that result from mistakes, errors, omissions, interruptions, deletion of files or data or email, defects, viruses, delays in operation or transmission or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to TouchBistro or any other Released Party’s records, programs or services.
In no event shall the aggregate liability of TouchBistro, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of TouchBistro Services or any third party services exceed any compensation paid by you for access to or use of TouchBistro Services for the three months prior to the date of any claim.
You shall defend, indemnify and hold harmless TouchBistro and the other Released Parties from any loss, damages, liabilities, costs, expenses, claims and proceedings arising out of your use of TouchBistro Services, and if you are a Subscriber, from your Customers’ use of TouchBistro Services or any third party services and from the use TouchBistro Services or any third party services by any person to whom you give access to your account (including as staff), including any claims made by any person that any of your, and if you are a Subscriber, your Customers’, User Content infringes the rights, including the intellectual property rights, of any third party. Some jurisdictions limit the scope of limitations of liability in which event TouchBistro claims the full scope of limitation of liability as may be allowed in any applicable jurisdiction.
Notices that we give you (other than notice of amendment of the Terms, which is discussed in the introduction of the Terms) may be provided in any number of ways, depending on the circumstances. For example, we may email you or telephone you at the contact information you provide in your Registration Data. Or we may post a notice to Subscribers and Customers in the dashboard area of your account on the Site, or post the notice elsewhere on the Site. When we post notices on the Site, we post them in the area of the Site suitable to the notice. It is your responsibility to periodically review the Site for notices. You agree to keep all Registration Data current and up to date which can be done by contacting firstname.lastname@example.org.
16. Applicable Law and Venue
TouchBistro Services are controlled by TouchBistro and operated by it from its offices in Toronto, Ontario Canada. You and TouchBistro both benefit from establishing a predictable legal environment in regard to TouchBistro Services. Therefore, you and TouchBistro explicitly agree that all disputes, claims or other matters arising from or relating to your use of TouchBistro Services or any third party services shall be exclusively governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein and the courts sitting at Toronto, Ontario. The parties hereto waive any right to trial by jury in respect of any dispute arising from or related to this agreement.
Except where prohibited by applicable law, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) involving TouchBistro and arising out of or relating to (a) the Terms; (b) TouchBistro Services or any associated third party services; (c) oral or written statements, advertisements or promotions relating to TouchBistro Services or any associated third party services; or (d) the relationships that result from TouchBistro Services or any associated third party services (collectively, a “Claim”), will be referred to and determined by individual arbitration by a single arbitrator (to the exclusion of the courts) sitting at Toronto, Canada in accordance with the Arbitrations Act of Ontario. Arbitration can be initiated by either party delivering to the other party a written Notice of Arbitration invoking this provision. The arbitrator’s authority is limited to claims between you and us alone. Claims may not be joined or consolidated unless you and we consent in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. The arbitrator’s decision will be final and binding. Each party will bear its own expenses under such arbitration, subject to the authority of the arbitrator to make an award of legal costs in accordance with the arbitrator’s authority.
Except where prohibited by applicable law, you waive any right you may have to commence or participate in any class action against TouchBistro related to any Claim and, where applicable, you also agree to opt out of any class proceedings against TouchBistro. Without limiting the foregoing, you and we will not have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. If you have a Claim, you should give written notice to arbitrate at the e-mail address specified below or by registered mail to TouchBistro’s head office. If we have a Claim, we will give you notice to arbitrate at your address provided in your Registration Data. Arbitration will be conducted by one arbitrator pursuant to the commercial arbitration laws and rules under Arbitrations Act of Ontario in effect on the date of the notice in the Province of Ontario.
To the extent arbitration as described in the immediately preceding paragraph is prohibited by applicable law, you agree that all Claims shall be heard and resolved in a court of competent subject matter jurisdiction located in Toronto, Ontario. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts and submit to their exclusive jurisdiction, and covenant not to assert any objection to proceeding in such courts. Notwithstanding the foregoing, TouchBistro shall be entitled, at its election, to apply to a court of competent jurisdiction for interim or permanent injunctive relief, a mandatory order, restraining order, or other like relief to restrain an actual or threatened breach of this Agreement and TouchBistro’s rights under it by any party and specifically but not limited to protection of the intellectual property, information technology, brand, trade-marks, and other proprietary material of TouchBistro or its suppliers or licensors.
If you choose to access TouchBistro Services from locations other than Ontario, you will be responsible for compliance with all local laws of such other jurisdiction and you agree to indemnify TouchBistro and the other Released Parties for your failure to comply with any such laws.
17. Termination/Modification of License and Site Offerings
Notwithstanding any provision of the Terms, TouchBistro reserves the right, without notice and in its sole discretion, without any notice or liability to you, to (a) terminate your license to use TouchBistro Services, or any portion thereof (including any use of any third party services) and the rights of any third party to which you have granted access to your User Content through the TouchBistro Services; (b) block or prevent your future access to and use of all or any portion of TouchBistro Services or Content (including any use of any third party services) and the rights of any third party to which you have granted access to your User Content through the TouchBistro Services; (c) change, suspend or discontinue any aspect of TouchBistro Services or Content; and (d) impose limits on TouchBistro Services or Content. Your sole remedy in such circumstances shall be limited to and not exceed the return of the pro rata amount of any pre-paid fees applicable to the balance of the term of any then current subscription period.
18. Termination of Agreement
TouchBistro Services will renew automatically for an additional fixed term of same duration. To avoid automatic renewal you must notify TouchBistro in writing at least sixty (60) days prior to the termination date. Standard price increases may apply on renewal. Upon renewal you authorize TouchBistro to process and collect payment in advance for the renewal term without further notice to you. Unless otherwise provided: (a) TouchBistro Services and access to Content are purchased as subscriptions, (b) subscriptions may be added at the same pricing as the underlying subscription pricing, starting with a new term and (c) any added subscriptions will terminate at the end of the new term.
You and TouchBistro may terminate your use of TouchBistro Services including your agreement to the Terms at any time. If you terminate your use of TouchBistro Services you must pay the fees applicable for the balance of the then current term (if your term period is monthly, we will prorate your account to the nearest month-end after termination) including for any third party services you may be using. When your TouchBistro account is terminated, your User Content will, shortly thereafter, not appear on TouchBistro Services, except for User Content submitted to public areas of the Site such as the blog, forum, or product reviews, which may remain on the Site after termination. We may also retain an archival copy of your User Content after termination, and you hereby grant us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for our internal business purposes.
If the Terms expire or terminate for any reason, Sections 4, 9-19 and any representation or warranty you make in the Terms, and any other term of the Terms that by its nature is ongoing, shall survive indefinitely.
If any provision of the Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. TouchBistro may assign any or all of its rights hereunder to any party without your consent. You are not permitted to assign any of your rights or obligations hereunder without the prior written consent of TouchBistro, and any such attempted assignment will be void and unenforceable. The Terms constitute the entire agreement between you and TouchBistro regarding your use of TouchBistro Services or any associated third party services, and supersede all prior or contemporaneous communications whether electronic, oral or written between you and TouchBistro regarding your use of them. The parties confirm that it is their wish that the Terms, as well as any other documents relating to this Terms, including notices, have been and shall be drawn up in the English language only. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais.
20. Questions and Comments
If you have any questions regarding the Terms or your use of TouchBistro Services, please contact us here: